The Commissioners for HMRC v Lanfranco Dettori (Anonymisation)

The open justice principle remains the starting point in applications for anonymity or privacy. Any derogation must be strictly necessary, supported by clear and cogent evidence, and proportionate to the specific facts. Withdrawal of the underlying proceedings does not create an automatic entitlement to continued anonymity. The court must assess the merits of the application, including the competing rights under Articles 8 and 10, and consider whether a less restrictive measure is available. The fact that an anonymity application was made does not itself justify preserving anonymity if the application fails. Applications for access to court documents are also governed by open justice, subject to practical, proportionality and legitimate-interest considerations.

The Upper Tribunal had previously allowed HMRC’s appeal against an order of the First-tier Tribunal that preliminary proceedings in the taxpayer’s substantive tax appeal should be heard in private. The earlier decision was initially published anonymously, with provision for later republication without anonymity. The taxpayer’s application for permission to appeal was refused, and he subsequently withdrew the substantive appeal.

The taxpayer then applied for the Upper Tribunal proceedings and the earlier decision to remain anonymised. Media organisations and other third parties opposed the application. One media organisation also sought access to transcripts, appeal papers and the First-tier Tribunal’s decision. The issues were whether withdrawal of the substantive appeal justified continuing anonymity and which documents should be disclosed under the open justice principle.

1. Anonymity application dismissed. The application had to be determined by reference to the ordinary principles governing derogations from open justice. Anonymity is not granted as a matter of discretion or consent. It requires a granular, fact-specific assessment of necessity, evidence and proportionality.
2. The principles summarised in Farley v Paymaster Limited (1836) t/a Equiniti [2024] EWHC 3883 applied in tax proceedings. Open justice is fundamental. A derogation is exceptional and must go no further than necessary. The burden rests on the applicant to establish the case with clear and cogent evidence. There is no general exception merely because private or confidential matters are involved.
3. The authorities concerning a party being given a choice between continuing in public and withdrawing did not establish an automatic rule. Scott v Scott [1913] AC 417 concerned circumstances in which publicity would destroy the subject matter of the litigation, such as trade secrecy. That analogy did not apply to a tax appeal. The relevant subject matter was the substantive tax appeal, not the anonymity application itself.
4. Withdrawal of the substantive appeal did not remove the need to establish necessity, proportionality and evidential support. The applicant had not explained why disclosure would cause an interference with Article 8 rights sufficiently serious to outweigh open justice, had not produced clear and cogent evidence, and had not addressed the balance with Article 10 rights. The requirements did not disappear because the underlying appeal had been withdrawn.
5. Access to documents was governed by the principles stated in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 and R (Guardian News and Media Ltd) v City of Westminster Magistrates Court [2012] EWCA Civ 420. Access to the First-tier Tribunal transcript and appeal papers was refused. Access to the First-tier Tribunal’s decision was granted insofar as necessary to understand the anonymity issue, subject to redaction of the taxpayer’s identity and material concerning the stay application.
6. The present decision and the earlier decision were initially kept anonymous solely during the period for exercising appeal rights. The usual time for seeking permission to appeal was reduced from one month to 21 days under the Tribunal Procedure (Upper Tribunal) Rules 2008.

• First-tier Tribunal (Tax Chamber): directed on 15 September 2021 that preliminary proceedings in the substantive tax appeal be heard in private.
• Upper Tribunal: allowed HMRC’s appeal against that direction in the earlier decision released on 11 January 2024, refused the taxpayer’s application for permission to appeal, and determined the subsequent anonymity and disclosure applications in the present decision.